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Johnson v. Commissioner of Social Security

United States District Court, N.D. Iowa, Central Division

August 27, 2018

SETH M. JOHNSON, Plaintiff,
v.
COMMISSIONER OF Social Security, [1] Defendant.

          REPORT AND RECOMMENDATION

          Kelly K.E. Mahoney, United States Magistrate Judge.

         Plaintiff Seth M. Johnson seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his applications for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Johnson argues that the administrative law judge (ALJ) erred in failing to include in his residual functional capacity (RFC) a limitation related to interacting with coworkers and supervisors, which he contends is supported by all the medical opinions in the record. He also argues that the ALJ erred in assigning little weight to the opinion of his treating physician based on a lack of recent treatment, as Johnson contends he submitted updated treatment records, but they were misplaced. I recommend reversing the Commissioner's decision and remanding for further proceedings.

         I. BACKGROUND [2]

         Johnson filed applications for DI and SSI benefits on August 16, 2011, alleging disability since his birth in 1981. Doc. 14 at 2. He had previously filed applications for DI and SSI benefits in August 2010, which were denied on initial review in February 2011. AR 259, 265, 376.[3] In connection with this prior determination, in December 2010, state agency psychological consultant Dr. David Christiansen, PhD, reviewed Johnson's treatment records to formulate an opinion of Johnson's mental RFC.[4] AR 494-96. Dr. Christiansen found Johnson moderately limited in his ability to work in coordination with others and in his abilities to interact appropriately with supervisors and the general public, concluding that Johnson would likely “have difficulty . . . relating with others in the workplace in an appropriate manner.” Id.

         Johnson's August 2011 applications were denied on initial review and on reconsideration, and two additional state agency psychological consultants evaluated Johnson's mental RFC in connection with those reviews. AR 119-58. In October 2011, Dr. Beverly Westra, PhD, found Johnson moderately limited in his abilities to interact with his coworkers and the general public, noting that “[h]e will be distracted working closely with others” and that he could only “work around a small number of familiar persons in predictable environments.” AR 124-26. In February 2012, Dr. Myrna Tashner, EdD, affirmed Dr. Westra's findings. AR 141-43.

         Johnson requested a hearing before an ALJ. The first hearing was held on March 13, 2013. AR 30-31. The ALJ heard testimony from Johnson but decided that another hearing was necessary due to missing medical records and also to give Johnson the opportunity to obtain counsel. AR 33-46. A second hearing was held on July 11, 2013, with Johnson once again appearing without representation. AR 47-48. Johnson, his mother, and a vocational expert testified. AR 48, 63. Johnson obtained counsel, and a third hearing was held on October 29, 2013. AR 80, 230. Johnson, his mother, and a vocational expert again offered testimony. AR 81. Johnson's counsel submitted additional RFC opinions from Johnson's treating physician, Dr. Larry Standing, DO, and from his treating psychiatrist, Dr. William Crowley, MD. AR 858-62, 893-98.

         The ALJ issued an opinion on November 8, 2013, finding Johnson not disabled. AR 1014-1024. The Appeals Council declined review (AR 1-3), and Johnson appealed to this court. See No. 15-CV-3126-MWB (N.D. Iowa). One of the issues Johnson raised was that the ALJ's RFC determination did not include any social functioning limitations, despite Dr. Crowley's and all the state agency psychological consultants' opinions containing such limitations and despite the ALJ finding Johnson suffered from moderate social limitations at step three. Id., Doc. 13 at 22-23. After Johnson filed his brief, the Commissioner moved for the action to be remanded “for further evaluation of the medical opinions and reassessment of plaintiff's [RFC].” Id., Doc. 14. The district court granted the Commissioner's motion, and the case was remanded for further administrative proceedings. AR 1073. The Appeals Council remanded the case to the ALJ with instructions suggesting that the RFC should be reformulated to reflect Johnson's moderate difficulties in social functioning. AR 1081-83.

         In July 2015, while his appeal was pending in this court, Johnson filed another application for SSI benefits. AR 944, 1228. In September 2015, state agency consultant Dr. Jonathan Brandon, PhD, evaluated Johnson's mental RFC in connection with the initial disability determination. AR 1051-53. He found Johnson moderately limited in his ability to work in proximity to others and in his ability to interact appropriately with the general public. AR 1051-52. He concluded that Johnson “experience[s] some limitation to his functioning from his mental [impairments], including some difficulty . . . getting along with others at times, ” such that Johnson could only work in a “setting with reduced social interaction.” AR 1052-53. Dr. Tashner affirmed Dr. Brandon's assessment on reconsideration in November 2015. AR 1067-68.

         Johnson's July 2015 application for SSI benefits was consolidated with his August 2011 applications for DI and SSI benefits when those claims were remanded to the Social Security Administration from this court. AR 944. The ALJ held another hearing on July 14, 2016, at which Johnson and a vocational expert testified. AR 978-79. At the request of Johnson's attorney, the ALJ allowed the record to be kept open for three weeks, since Johnson had an upcoming appointment with Dr. Standing scheduled for July 26, 2016, and his attorney wished to submit the records from that appointment. AR 980-81. The treatment notes from this appointment are not in the record; although there is a new exhibit with treatment notes from Dr. Standing labeled “Office Treatment Records dated 08/29/2011 to 07/26/2016, from LARRY STANDING” (exhibit 34F), it consists entirely of duplicates of treatment notes from 2011 through 2013 that were already in the record. See AR 558-60, 587-89, 625-42, 855-72, 1492-1525. A new RFC opinion from Dr. Standing appears in the record, however, formulated in August 2016 (exhibit 35F). AR 1526-30. In addition, Johnson submitted a mental RFC assessment from his new treating psychiatrist, Dr. Muhammad Chowdhry, MD, completed in June 2016. AR 1475-80.

         The ALJ issued his second written decision on September 28, 2016. AR 943-62. Once again, the ALJ denied Johnson benefits, following the familiar five-step process outlined in the regulations.[5] At step one, although the ALJ noted that the claimant had engaged in substantial gainful activity since his alleged onset date in 1981, the ALJ found that “there were consecutive 12-month periods in which the claimant did not engage in substantial gainful activity.” AR 946. At step two, the ALJ found Johnson suffered from “the following severe impairments: depression, anxiety, substance abuse history, degenerative disc disease, tremors, and attention deficit/hyperactivity disorder (ADHD).” AR 946. At step three, the ALJ found that Johnson's impairments did not meet or equal a listing. AR 946-47. At step four, the ALJ found that Johnson could not perform his past work, but at step five, the ALJ found Johnson could perform other work. AR 960-62.

         To determine Johnson's ability to work at steps four and five, the ALJ evaluated Johnson's RFC:

[Johnson] has the [RFC] to perform light work . . . such that [Johnson] could lift 20 pounds occasionally, 10 pounds frequently. He could only occasionally balance, stoop, kneel, crouch, crawl, or climb. He would be limited to simple, routine, and repetitive work. He should have no contact with the public. There should be no specific production-rate requirements.

         AR 948. In making this determination, the ALJ considered the RFC opinions in the record. AR 955-57, 960. The ALJ assigned Dr. Standing's opinions little weight. AR 955-56. With regard Dr. Standing's 2016 opinion, the ALJ relied (at least in part) on the lack of “contemporaneous treatment records suggesting the claimant was receiving . . . ongoing medical care from Dr. Standing, ” finding it “[s]ignificant[]” that “based on the record, it appeared [Dr. Standing] last treated [Johnson] in October 2013.” AR 956. The ALJ also assigned little weight to the opinions of Johnson's treating psychiatrists. AR 956-57. The ALJ assigned great weight to the state agency psychological consultants' opinions, noting generally that they all found Johnson capable of working in a “setting with reduced social interaction.” AR 960. The ALJ cited the exhibits containing Dr. Christiansen's opinion, Dr. Brandon's opinion, and Dr. Tashner's November 2015 opinion, but not the exhibits containing Dr. Westra's opinion or Dr. Tashner's February 2012 opinion.[6] AR 960.

         Johnson requested Appeals Council review of the ALJ's decision. AR 1222-26. One of his arguments in support of review related to the existence of more recent medical records from Dr. Standing:

The [ALJ] apparently did not recognize, although he refers to it on Page 10 of 10 of his opinion, Exhibits 34F and 35F, which shows 40 pages of medical records, which show a longitudal record of treatment, which the [ALJ] failed to recognize. Apparently, when Dr. Standing sent his opinion in, he neglected to send in the medical records substantiating it, which claimant's counsel provided after the hearing when this was brought to his attention. The fact that these medical records became part of the record in this case was not noted by the [ALJ] in his opinion.

         AR 1223. In December 2016, the Appeals Council sent Johnson's attorney a letter, noting that his “correspondence suggests that [he] might have additional arguments and/or materials that [he] might wish to present to the Appeals Council.” AR 976. The Appeals Council gave Johnson thirty days “to submit further materials.” AR 976. After no such materials were received, the Appeals Council denied Johnson's request for review on March 22, 2017 (AR 932-36), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.

         Johnson filed a timely complaint in this court, seeking judicial review of the Commissioner's decision (Docs. 1, 3). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 15, 16, 17), and the Honorable Leonard T. Strand, Chief United States District Judge for the Northern District of Iowa, referred this case to me for a Report and Recommendation.

         II. DISCUSSION

         A court must affirm the ALJ's decision if it “is supported by substantial evidence in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d at 707. The court “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the evidence, “it is possible to draw two inconsistent positions from the ...


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